This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-01-262

 

Dorothy A. Burnett,

Relator,

 

vs.

 

Intrepid-New Horizons,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

Filed August 7, 2001

Affirmed

Lindberg, Judge*

 

Department of Economic Security

File No. 803500

 

Dorothy A. Burnett, 905 Sixth Avenue Northeast, Austin, MN  55912-3669 (pro se relator)

 

Intrepid-New Horizons Home Care, Inc., 6750 France Avenue South, Suite 275, Edina, MN  55435 (respondent)

 

Kent E. Todd, Department of Economic Security, 390 North Robert Street, St. Paul, MN  55101 (for respondent Commissioner of Economic Security)

 

            Considered and decided by Toussaint, Chief Judge, Stoneburner, Judge, and Lindberg, Judge.


U N P U B L I S H E D   O P I N I O N

LINDBERG, Judge

            This is a certiorari appeal from the decision by the commissioner’s representative that relator was disqualified from receiving unemployment benefits because she did not quit for good reason caused by her employer.  We affirm.

FACTS

            Relator, a home health aide, worked part-time, approximately 28 to 32 hours per week.  Her hours varied somewhat because her patients’ conditions changed, sometimes recovering so that they no longer needed care, and sometimes passing away.  Relator preferred to work Tuesdays and Thursdays from 3:00 p.m. to 11:00 p.m.  She also preferred not to work on the weekends in the summer, so that she could encourage her husband, who had suffered a stroke, to be more active.

            Prior to the assignment at issue, relator was assigned two days a week to a client who resided in Adams, Minnesota.  Relator’s employer then asked if she would switch assignments with another aide who lived in Adams.  In return, relator would be assigned to work two days a week with a foster family in Austin, where relator lived.  The employer promised relator that if she agreed to the switch, she would be able to work at the foster home as long as her employer needed her to work at that assignment.  Relator agreed.

            About a year later, in August 2000, the foster family asked the employer to assign another aide who worked full-time hours to assist 40 hours per week.  The employer granted the family’s request.  This resulted in fewer hours at the foster home assignment for part-time employees, including relator.  In addition, during the school year, the foster home did not usually need an aide during the day shift.

            Consequently, relator’s employer advised her that her hours with the foster family would be significantly reduced when school began the following month.  The employer offered to find other assignments for relator, although it would take some time to build up her hours because of her scheduling preferences.  Relator refused.  On August 30, 2000, relator notified her employer that she was quitting because of the reduced hours, which she felt was caused by the employer reneging on its promise to let her keep her hours with the foster family.

            Relator applied for unemployment benefits but the Department of Economic Security disqualified her from receiving benefits.  She appealed, and the unemployment judge upheld the disqualification.  She sought review from the commissioner’s representative.  The commissioner’s representative affirmed, determining that she had not quit for good reason caused by the employer.  This certiorari appeal followed.

D E C I S I O N

            In reviewing the findings by the commissioner’s representative, this court will view the evidence in the light most favorable to the decision.  White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).  The findings will not be disturbed if the evidence reasonably tends to sustain them.  Id.

            Generally, an applicant who quits employment is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 1 (2000).  One exception occurs when “the applicant quit the employment because of a good reason caused by the employer.”  Id., subd. 1(1) (emphasis added).  The reason must be “directly related to employment,” and so significant that it “would compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment.”  Minn. Stat. § 268.095, subd. 3(a) (2000).  “A substantial adverse change in wages, hours, or other terms of employment” constitutes good reason for an employee to quit.  Minn. Stat. § 268.095, subd. 3(c).

            The issue here is whether the reduction in hours was attributable to the employer.  Relator testified that she attributed the reduction in hours to the employer’s failure to keep its promise that she could remain with the foster family indefinitely.  The commissioner’s representative rejected this argument, determining that the employer promised her the assignment only so long as she was needed there and provided credible testimony showing legitimate business reasons for reducing her hours there.  Relator also argued that the employer did not have other assignments to replace the hours she lost at the foster home.  The commissioner’s representative found that the employer provided credible testimony that there would be enough assignments to replace her lost hours although, due to her scheduling preferences, it could take some time to reach her desired number of hours.  The commissioner’s representative determined that because of relator’s scheduling preferences she must bear some responsibility for the reduction in her hours, even if she agreed to work weekends.

            Relator contends that there is nothing in the record to show she restricted her hours.  But there was substantial evidence in the record showing that she preferred working Tuesday and Thursday 3:00 p.m. to 11:00 p.m. and weekends.  The commissioner’s representative’s decision is supported by evidence and relator is disqualified from receiving benefits because she did not quit for good reason caused by the employer.

            Affirmed.

 



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.